Wednesday, February 04, 2009

ECHR expands scope of privacy rights?

OUT-LAW has details of a recent European Court of Human Rights decision which may push out the boundaries of privacy rights - in particular by finding a violation based on the taking of a photograph alone (without any publication). The facts in Reklos and Davourlis v. Greece were:

The applicants, Dimitrios Reklos and Vassiliki Davourli, are Greek nationals who were born in 1964 and 1967 respectively and live in Athens. They are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic. Immediately after birth, the baby was placed in a sterile unit to which only medical staff had access.

As part of the photography service offered to clients, two photographs of the new-born baby, viewed face on, were taken by a professional photographer. The parents objected to this intrusion into the sterile environment without their prior consent.

On 25 August 1997, following the clinic’s refusal to hand over the negatives of the photographs to them, the applicants brought an action for damages before the Athens Court of First Instance. The court dismissed the action as unfounded.

In September 1998 the child’s parents appealed unsuccessfully against that decision. In August 2002 they lodged an appeal on points of law, submitting that the court rulings had infringed the right “to dignity” and “to protection of private life”, and stressing the potential dangers for disabled children.

On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it was too vague. (Facts taken from the ECHR press release - judgment in English not yet available.)

The ECHR agreed with the parents, holding:

The Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that a person’s image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control one’s image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication.

The Court observed that, since he was a minor, Anastasios’s right to protection of his image had been in the hands of his parents. Their consent had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The Court noted that the negatives could have been used at a later date against the wishes of those concerned.

The Court concluded that the Greek courts had not taken sufficient steps to guarantee Anastasios’s right to protection of his private life, in breach of Article 8. (Emphasis added.)

The portions in bold are significant: unlike earlier caselaw on photography / CCTV (such as von Hannover v. Germany or Peck v. United Kingdom) the Court identified the taking of the photograph itself as a violation irrespective of whether it was subsequently published or otherwise made public. This is - as Rosemary Jay points out in the OUT-LAW post - consistent with the approach taken in the UK DNA Database case last December (S and Marper v. United Kingdom) where the focus was on the gathering and storage of personal information rather than its subsequent use. As such, it is potentially important for the argument that data retention is itself a violation of Article 8, whether or not any further use is made of the retained data.